W. H. Chester, of Phoenix, for appellant.
Milton L. Ollerton, of Phoenix, for appellee.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concurring.
Udall, Chief Justice.
[71 Ariz. 316] Marie L. Smith, plaintiff-appellee, on February 17, 1949, filed a complaint for divorce against her husband, Thad G. Smith, defendant-appellant, alleging cruelty and asking for a divorce and a division of their community property. The parties will hereafter be designated as they were in the lower court. The defendant by his answer denied any wrongdoing on his part, and set forth a property settlement agreement theretofore entered into by the parties. By counterclaim he alleged acts of cruelty on the part of plaintiff, prayed for a dissolution of the marriage and an equitable division of their community property by enforcement of said agreement. After a trial on the merits to the court, sitting without a jury, judgment was entered on August 22, 1949, in favor of plaintiff; the bonds of matrimony were dissolved; no alimony was allowed; and the court, not deeming itself bound by the property settlement agreement, made such disposition of the community property as it deemed proper. After denial of defendant's motion for a new trial, this appeal was taken both from the judgment and said order.
Defendant's assignments of error are based on his contention that the trial court, by its decree awarding the plaintiff the 2 1/2 acre "home tract" (located at 4650 North 18th Street in Phoenix), divested him of his [71 Ariz. 317] separate property, contrary to the provisions of sec. 27-805, A.C.A. 1939. In support of this contention defendant maintains (1) that this "home tract" was paid for with his separate funds, and (2) that the trial court was bound to give effect to the property settlement agreement, the terms of which provided, "Second party (defendant) shall have as his separate property the equity of the parties hereto (in the home tract here in question)."
To properly understand the issues presented a brief recitation of facts is necessary. The parties were married at Lordsburg, New Mexico on November 14, 1947, and there were no children as the issue thereof. This marital venture was the second for this 41-year-old plaintiff, and the third for defendant, his second marriage having been dissolved just six weeks previously. It was not long until differences arose between the parties. On May 28, 1948, the property settlement agreement herein relied upon was entered into, and upon the same date plaintiff commenced an action for divorce. On June 5, 1948, on plaintiff's motion, her complaint for divorce was dismissed by the superior court and the parties resumed cohabitation. Two weeks before the instant divorce action was commenced defendant filed for record with the county recorder the property agreement previously entered into in May of the preceding year and a week later the plaintiff saw fit to make, execute and record a declaration of homestead upon the home tract. At the time of trial defendant's financial affairs were in such shape that he was in the bankruptcy court.
We are convinced that neither the husband's eleventh hour recordation of the property agreement nor the wife's belated declaration of homestead have, inter sese, any bearing upon the legal questions presented. The rights of creditors or of other third parties are in nowise involved in this appeal
We shall first consider defendant's claim that the home tract was his separate property -- having been paid for with his separate funds -- and being such that the trial court could not divest him of title thereto because of sec. 27-805, supra, as interpreted by several decisions of this court, the latest being Armstrong v. Armstrong, 71 Ariz. 275, 226 P.2d 168. As against defendant's evidence that the home tract was his separate property, we have the contradictory testimony of plaintiff that the house was wholly paid for out of their community earnings. No point would be gained by setting out in detail this conflicting testimony as it would only unduly extend the opinion. The deed conveying title to the home property was admittedly received during coverture and it named both husband and wife as grantees. This fact alone raised a presumption that the home was community property and the burden was then on defendant to overcome that presumption. This could be done only by "strong", "satisfactory",
"convincing", "clear and cogent" [71 Ariz. 318] or "nearly conclusive evidence". See Porter v. Porter,67 Ariz. 273, 195 P.2d 132. Defendant wholly failed to supply such evidence, and in fact on cross-examination these revealing ...